Failure to Pay Litigation-Related Expenses Can be Disciplinary Misconduct

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Can the failure to pay a court reporter’s invoice be sanctionable misconduct “prejudicial to the adminstration of justice”? Yes, according to a recent order by the Louisiana Supreme Court. See In re Appeal of Decision of the Disciplinary Board, No. 16-PDB-049 (La. Jan. 9, 2017).

The Office of Disciplinary Counsel traditionally does not allow itself to be used as a collection agent for the vendors and creditors of lawyers. In so doing, the office has relied upon the Louisiana Supreme Court’s 2003 decision in In re Bilbe, 841 So. 2d 729 (La. 2003). In that case, the hearing committee opined that “the failure to pay an invoice of a court reporter does not constitute action that is prejudicial to the administration of justice1 even though Respondent has no justification for not paying the invoice.” Otherwise, the committee feared, the disciplinary board “would become a collection agency for creditors of attorneys.” Id. at 736. At the time, he court agreed:

Finally, the hearing committee and disciplinary board have recommended the dismissal of the charge involving the unpaid invoice for court reporting services. While we do not condone respondent’s failure to pay litigation-related expenses she has incurred, we tend to agree with the board that such conduct does not generally constitute a violation of the Rules of Professional Conduct.

Id. at 739.

Have things changed?

Perhaps. On January 9, 2017, the Louisiana Supreme Court reinstated a disciplinary investigation that was closed by ODC arising out of a lawyer’s failure to pay unspecified litigation expenses:

Based on our review of the record, we find the disciplinary board was arbitrary and capricious in dismissing the complaint. This court’s opinion in In re Bilbe, 02-1740 (La. 2/7/03), 841 So. 2d 729, is limited to the unique facts presented and does not stand for the blanket proposition that an attorney’s failure to pay litigation-related expenses can never constitute conduct prejudicial to the administration of justice.

Id. As a result, the court remanded the matter to ODC “to conduct further investigation and to institute formal charges, if appropriate.” Id.

Let us all hope that this does not portend the conversion of ODC into a bill-collection agency. In the meantime, don’t crumple up that expert’s invoice.

  1. Louisiana Rule 8.4(d) prohibits “conduct that is prejudicial to the administration of justice.”
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